Crime-severity distinctions and the fourth amendment: Reassessing reasonableness in a changing world

Iowa Law Review

Volumn 97, Issue 1, 2011, Pages 1-48

  Bellin, Jeffrey ^a  

^a Southern Methodist University   (United States)

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EID: 80955131423     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (394)

1. See David R. Cameron, DNA Matching Technique Is a Powerful Tool for Police, HARTFORD COURANT, July 13, 2010, http://articles.courant.com/2010-07-13/ news/hc-op-familialsearching-cameron-071320100713-1-offender-profiles-dna- expert-new-dna-technique (noting that "even critics of aggressive approaches to gathering DNA ⋯ applauded how familial searching was used in the Grim Sleeper case" and quoting an attorney with the American Civil Liberties Union of Southern California, who commented, "From our perspective, if you are going to use familial DNA searching, this is the kind of case you should use it for" (internal quotation marks omitted));
2. Elizabeth Joh, The Grim Sleeper and DNA: There's Much To Be Concerned About, L.A. TIMES, July 10, 2010, http://articles.latimes.com/2010/jul/10/ opinion/la-oe-johdna-20100710 (cautioning that the "investigative triumph" of the Grim Sleeper case should not "blind us to the dangers of expanding genetic surveillance");
3. Jennifer Steinhauer, 'Grim Sleeper' Arrest Fans Debate on DNA Use, N.Y. TIMES, July 9, 2010, at A14 (reporting expert consensus that "[t]he arrest in the protracted, gory case could settle the internal debate among lawmakers and the law enforcement agencies across the country" regarding familial DNA searches).
4. Press Release, Cal. Att'y Gen.'s Office, California's Familial DNA Search Program Identifies Suspected "Grim Sleeper" Serial Killer (July 7, 2010), available at http://ag.ca.gov/newsalerts/release.php?id=1945 (explaining that under internal guidelines, familial DNA searches "are only allowed in major violent crimes when there is a serious risk to public safety and all other investigative leads have been exhausted");
5. see Editorial, A Yellow Light to DNA Searches, N.Y. TIMES, July 13, 2010, at A24;
6. Post-Standard Editorial Board, DNA Searches: Partial Matches Can Help Solve Crimes-If Used Carefully, SYRACUSE.COM BLOG (July 15, 2010, 6:15 PM), http://blog.syracuse.com/opinion/2010/07/dna-searches-partial-matches-c.html.
7. For an extensive discussion of familial DNA searches, see Sonia M. Suter, All in the Family: Privacy and DNA Familial Searching, 23 HARV. J.L. & TECH. 309 (2010).
8. Ray Rivera & Al Baker, Police Cite Help from Stop-and-Frisk Data in 170 Cases, N.Y. TIMES, July 17, 2010, at A15.
9. John P. Martin, Judge Orders L. Merion To Halt Monitoring, PHILLY.COM (May 15, 2010), http://articles.philly.com/2010-05-15/news/24960045-1-webcams- laptops-injunction (noting the school district's acceptance of responsibility and apology to students and their families).
10. William Bender, Spying on L. Merion Students Sparks Probes by FBI, Montco Detectives, PHILA. DAILY NEWS, Feb. 20, 2010, at 3 (reporting negative publicity along with criminal probes initiated by local and federal law enforcement in wake of school-district surveillance);
11. see also Joseph Tanfani, How School Web Cam Debacle Evolved, PHILLY.COM (Mar. 21, 2010), http://articles.philly.com/2010-03-21/news/25215619-1-web-cam- computer-files-school-boardmember (noting school officials' retrieval of most of the missing laptops);
12. Editorial: Untangling a Legal Web, PHILLY.COM (July 20, 2010), http://articles.philly.com/2010-07-20/news/24968967-1-webcam-laptops-school- issued (condemning district's actions, in part, because "[a]s an antitheft strategy, the webcam tracking was overkill").
13. U.S. CONST. amend IV.
14. William J. Stuntz, Commentary, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842, 875 (2001) ("[T]he worst crimes are the most important ones to solve, the ones worth paying the largest price in intrusions on citizens' liberty and privacy.").
15. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2651 (2009) (Thomas, J., concurring in the judgment and dissenting in part) (highlighting as a "basic principle of the Fourth Amendment" that officers "can enforce with the same vigor all rules and regulations irrespective of the[ir] perceived importance" and noting that the "Fourth Amendment rule for searches is the same: Police officers are entitled to search regardless of the perceived triviality of the underlying law");
16. WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.8(c) n.8 (3d ed. 2007) ("[D]istinction[s] between major and minor crimes are rare in the constitutional regulation of criminal procedure.");
17. Max Minzner, Putting Probability Back into Probable Cause, 87 TEX. L. REV. 913, 940 (2009) ("Currently, the Fourth Amendment is blind to the type of crime underlying the search.");
18. Erin Murphy, The Case Against the Case for Third-Party Doctrine: A Response to Epstein and Kerr, 24 BERKELEY TECH. L.J. 1239, 1244 (2009) ("For better or for worse, we have a trans-substantive Fourth Amendment.");
19. William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2140 (2002) ("[M]ost constitutional limits on policing are transsubstantive-they apply equally to suspected drug dealers and suspected terrorists.").
20. See City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) ("[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.");
21. Florida v. J.L., 529 U.S. 266, 273-74 (2000) ("[A] report of a person carrying a bomb need [not] bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.");
22. Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951, 1010-11 (2003) (recognizing that "courts have considered the gravity of the suspected offense" in evaluating "exigent circumstances").
23. But see Eugene Volokh, Crime Severity and Constitutional Line-Drawing, 90 VA. L. REV. 1957, 1976 n.67 (arguing that the case law seems to focus primarily on whether there is an exigency unrelated to catching criminals, and "[t]he seriousness of the crime being detected or deterred seems to be less significant (unless perhaps it rises to the level of 'terrorist attack')" (citation omitted)).
24. For an example of a search upheld based on probable cause for jaywalking, see United States v. Battles, No. 8:07CR337, 2008 WL 2323369, at *1 (D. Neb. June 2, 2008).
25. For background on the investigation of the Green River Killer, see Matthew R. Wilmot, Note, Sparing Gary Ridgway: The Demise of the Death Penalty in Washington State?, 41 WILLAMETTE L. REV. 435, 435-36 (2005).
26. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 799 (1994) ("Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated.");
27. John Kaplan, The Limits of the Exclusionary Rule, 26 STAN. L. REV. 1027, 1037 (1974) (stating that "courts often stretch and strain in serious cases to avoid applying the exclusionary rule" and identifying suspicious cases of judicial distortion);
28. Andrew E. Taslitz, Fortune-Telling and the Fourth Amendment: Of Terrorism, Slippery Slopes, and Predicting the Future, 58 RUTGERS L. REV. 195, 198 (2005) ("[I]t is hard to believe that the terror war's shadow does not fall across all search and seizure questions, for any case arising outside of a combat situation may lay a precedent that will be of future use (or harm) in the war.").
29. See Ric Simmons, Why 2007 Is Not Like 1984: A Broader Perspective on Technology's Effect on Privacy and Fourth Amendment Jurisprudence, 97 J. CRIM. L. & CRIMINOLOGY 531, 533-34 (2007) (setting out similar list of "powerful new surveillance technologies used by law enforcement agents" with examples of usage);
30. Daniel J. Solove, Data Mining and the Security-Liberty Debate, 75 U. CHI. L. REV. 343, 343 (2008) (describing the practice of "data mining" where the government assembles personal data and analyzes it "for particular patterns of behavior deemed to be suspicious").
31. See United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir. 2010) (concluding that placing GPS tracking device on the underside of the car of a person suspected of growing marijuana did not constitute a search);
32. Devega v. State, 689 S.E.2d 293, 299 (Ga. 2010) (rejecting claim that police violated the Fourth Amendment by having the suspect's "cell phone provider 'ping' his phone" to obtain its location);
33. A. Michael Froomkin, The Death of Privacy?, 52 STAN. L. REV. 1461, 1463 (2000) ("[T]he state and the private sector now enjoy unprecedented abilities to collect personal data, and ⋯ technological developments suggest that costs of data collection and surveillance will decrease, while the quantity and quality of data will increase.");
34. Paul Ohm, Probably Probable Cause: The Diminishing Importance of Justification Standards, 94 MINN. L. REV. 1514, 1556-57 (2010) (providing examples of how new "intermediated communications technologies empower the police" and warning that "we are all being watched more closely and more often than we ever have been");
35. Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 GEO. WASH. L. REV. 1264, 1265 (2004) (explaining that modern "technology has given the government an unprecedented ability to engage in surveillance");
36. Jeffrey Rosen, The Web Means the End of Forgetting, N.Y. TIMES, July 21, 2010, http://www. nytimes.com/2010/07/25/magazine/25privacy-t2.html (discussing radical changes in the amount of information that people voluntarily place into the public domain).
37. See Richard S. Frase, What Were They Thinking? Fourth Amendment Unreasonableness in Atwater v. City of Lago Vista, 71 FORDHAM L. REV. 329, 420 (2003) (arguing that scholars failed to help the Supreme Court reach a correct result in Atwater because "[v]ery few writers emphasized the importance of offense severity in reasonableness balancing analysis");
38. See William A. Schroeder, Factoring the Seriousness of the Offense into Fourth Amendment Equations-Warrantless Entries into Premises: The Legacy of Welsh v. Wisconsin, 38 U. KAN. L. REV. 439 (1990)
39. discussing Welsh v. Wisconsin, 466 U.S. 740 (1984).
40. U.S. CONST. amend. IV. Plain does not necessarily mean clear. The second "warrant" clause of the Amendment creates ambiguity because it can be viewed as either narrowing or expanding the first "reasonableness" clause. See WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 770 (2009).
41. This Article proceeds on the assumption, shared by most scholars and the Supreme Court, that the overall command of the Amendment is reasonableness, with the warrant clause delineating a specific subset of that command. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 719, 722-24, 736-38 (2000) (citing James Madison's original proposed text for the Amendment and historical context to argue that its purpose was solely to prohibit general warrants, while recognizing that other commentators "almost uniformly" accept "that the change [to Madison's original text] was intended to create a reasonableness standard for warrantless intrusions");
42. CUDDIHY, at 695 (arguing that even the original language proposed by Madison was intended to broadly prohibit unreasonable searches and seizures: Madison's original "meaning ⋯ was not that general warrants were forbidden while other violations ⋯ were tolerable, but that only one of many forbidden violations, the general warrant, had been sufficiently egregious to require mention").
43. See, e.g., Michigan v. Fisher, 130 S. Ct. 546, 548 (2009) (per curiam) ("[T]he ultimate touchstone of the Fourth Amendment, we have often said, is reasonableness." (alteration in original) (internal quotation marks omitted));
44. Samson v. California, 547 U.S. 843, 855 n.4 (2006) (same);
45. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (same);
46. Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002) ("'[R]easonableness' ⋯ is the touchstone of the constitutionality of a governmental search.");
47. United States v. Knights, 534 U.S. 112, 119 (2001) (same);
48. Illinois v. McArthur, 531 U.S. 326, 330 (2001) (stating that the "central requirement" of the Fourth Amendment "is one of reasonableness" (internal quotation marks omitted));
49. Frase, 21, at 375 ("The Court has stated many times that 'reasonableness in all the circumstances' is the 'touchstone' of Fourth Amendment analysis.");
50. Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. REV. 1, 70 (1991) (describing that case law establishes as the "most fundamental guideline ⋯ in determining whether a search or seizure is 'reasonable'" that "competing state and individual interests must be balanced").
51. Zurcher v. Stanford Daily, 436 U.S. 547, 559-60 (1978);
52. see United States v. Torres, 751 F.2d 875, 882-83 (7th Cir. 1984);
53. see also Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).
54. McArthur, 531 U.S. at 330.
55. Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (emphasis added)
56. (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975));
57. United States v. Knights, 534 U.S. 112, 118-19 (2001) ("[R]easonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'"
58. (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)));
59. Tennessee v. Garner, 471 U.S. 1, 8 (1985) ("We have described 'the balancing of competing interests' as 'the key principle of the Fourth Amendment.'"
60. (quoting Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981)));
61. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 965 (1987);
62. Frase, at 348-49 (chronicling the development of general reasonableness balancing in Supreme Court case law).
63. Volokh, at 1965 ("[I]n our daily lives we judge the reasonableness of a reaction partly based on the harm that it aims to avoid [and i]t seems appealing to have constitutional law do likewise.").
64. See Christopher Slobogin, Proportionality, Privacy, and Public Opinion: A Reply to Kerr and Swire, 94 MINN. L. REV. 1588, 1598 (2010) (recognizing that in opinion surveys, "the seriousness of the crime under investigation correlated inversely with intrusiveness ratings," i.e., people more readily accept privacy intrusions that target more serious crimes).
65. See, e.g., 18 U.S.C § 2516 (2006) (limiting authority of prosecutors to intercept wire or oral communications to investigations of serious crimes);
66. (setting forth considerations for holding suspects on bail based, in part, on crime severity).
67. See, at 802 ("It clearly states a global truth that makes intuitive sense to police officials and citizens alike: serious crimes and serious needs can justify more serious searches and seizures.").
68. See New Jersey v. T.L.O., 469 U.S. 325, 380 (1985) (Stevens, J., concurring and dissenting) ("The logic of distinguishing between minor and serious offenses in evaluating the reasonableness of school searches is almost too clear for argument.");
69. United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984);
70. A similar intuition is recognized in many foreign jurisdictions. See Craig M. Bradley, The Exclusionary Rule in Germany, 96 HARV. L. REV. 1032, 1041 (1983) (discussing German example where courts require that "the methods used in fighting crime must be proportional to the 'seriousness of the offense and the strength of the suspicion'"
71. (quoting T. KLEINKNECHT, STRAFPROZESSORDNUNG ¶ 19 (33d ed. 1977)
72. Yves-Marie Morissette, The Exclusion of Evidence Under the Canadian Charter of Rights and Freedoms: What To Do and What Not To Do, 29 MCGILL L.J. 521, 528-30, 554 (1984) (discussing consideration of seriousness of offense in related contexts in the courts of Scotland, Australia, New Zealand, Canada, and Germany and noting that a recognition of the salience of weighing the "triviality of the offense investigated" against any contested privacy intrusion "pervades continental European administrative law");
73. Peter P. Swire, Proportionality for High-Tech Searches, 6 OHIO ST. J. CRIM. L. 751, 760 (2009) (suggesting that American jurisprudence would benefit from more "engagement" with the proportionality doctrines applied in other jurisdictions, including Canada, Germany, the European Court of Human Rights, India, Ireland, and South Africa).
74. See Tennessee v. Garner, 471 U.S. 1, 12-13 (1985) (recognizing as "the common-law rule" and the "prevailing rule at the time of the adoption of the Fourth Amendment" that an officer could "use ⋯ whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant");
75. Payton v. New York, 445 U.S. 573, 616 (1980) (White, J., dissenting) ("At common law, absent exigent circumstances, entries to arrest could be made only for felony.").
76. Thomas Y. Davies, How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power, 73 LAW & CONTEMP. PROBS., Summer 2010, at 1, 12 [hereinafter Davies, Post-Framing Adoption];
77. see also Fabio Arcila, Jr., The Death of Suspicion, 51 WM. & MARY L. REV. 1275, 1286 (2010) (describing common-law rule that "authorized private homes to be searched for felons on hue and cry, merely upon suspicion").
78. Although it has not decided the question, the Court suggested in Atwater that the common-law in-the-presence requirement for a warrantless misdemeanor arrest is not a constitutional requirement. See Atwater v. City of Lago Vista, 532 U.S. 318, 340 n.11 (2001) (stating that it was not deciding the question, while simultaneously citing Justice White's statement in Welsh that the requirement "is not grounded in the Fourth Amendment" (internal quotation mark omitted));
79. Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 WAKE FOREST L. REV. 239, 383 (2002) (stating that the Atwater footnote "strongly suggests that the majority justices are unwilling to treat the committed-in-the-presence-of standard as a constitutional requirement for misdemeanor arrests").
80. Davies ascribes the movement toward allowing broad search and seizure authority for misdemeanor offenses in the United States to the necessities of enforcing prohibition laws, which "were often misdemeanors."
81. As Davies notes, so much has changed since the founding that it may be impossible to return to the common law's understanding of governmental search and seizure authority.
82. It may also be unwarranted as a purely interpretive matter. See Garner, 471 U.S. at 13 (stating that the Amendment "has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage"
83. (quoting Payton, 445 U.S. at 591 n.33) (internal quotation marks omitted));
84. Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 824 (1994) ("[T]he Fourth Amendment, more than many other parts of the Constitution, appears to require a fairly high level of abstraction of purpose; its use of the term 'reasonable' (actually, 'unreasonable') positively invites constructions that change with changing circumstances.");
85. cf. Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U. L. REV. 925, 927 (1997) (criticizing the Court for its inconsistent use of history in interpreting Fourth Amendment reasonableness).
86. For a discussion of common-law felonies, see Guyora Binder, The Origins of American Felony Murder Rules, 57 STAN. L. REV. 59, 90-91 (2004) (explaining that the term felony "originally referred simply to vicious acts" but greatly expanded over the eighteenth century).
87. See Chandler v. Miller, 520 U.S. 305, 313 (1997) ("To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.");
88. Ohm, at 1555 ("Fourth Amendment search-and-seizure law ⋯ has always treated probable cause as the principle tool for balancing privacy and security.");
89. cf. Torres, 751 F.2d at 882 ("The usual way in which judges interpreting the Fourth Amendment take account of the fact that searches vary in the degree to which they invade personal privacy is by requiring a higher degree of probable cause (to believe that the search will yield incriminating evidence), and by being more insistent that a warrant be obtained ⋯ .").
90. Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) (holding that the Fourth Amendment permits "an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest").
91. see ARIZ. REV. STAT. ANN. § 28-3473(A) (2011) (classifying offense of driving without a license as "a class 1 misdemeanor").
92. Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (emphasis added) (explaining that police may detain an individual based on "a reasonable, articulable suspicion that criminal activity is afoot");
93. cf. Maryland v. Pringle, 540 U.S. 366, 370 (2003) ("A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause.");
94. Garner, 471 U.S. at 7 ("A police officer may arrest a person if he has probable cause to believe that person committed a crime.").
95. Ornelas v. United States, 517 U.S. 690, 696 (1996) (emphasis added) (describing "reasonable suspicion" as "'a particularized and objective basis' for suspecting the person stopped of criminal activity" and "probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found"
96. (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981))).
97. Illinois v. Gates, 462 U.S. 213, 238 (1983) (emphasis added);
98. see also FED. R. CRIM. P. 41(d)(1) ("After receiving an affidavit or other information, a magistrate judge-or if authorized by Rule 41(b), a judge of a state court of record-must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.");
99. Virginia v. Moore, 553 U.S. 164, 176-77 (2008) (explaining the rule "that officers may perform searches incident to constitutionally permissible arrests" applies to "any 'lawful arrest'"
100. (quoting United States v. Robinson, 414 U.S. 218, 235 (1973).
101. Mincey v. Arizona, 437 U.S. 385 (1978). Justice Rehnquist agreed with the holding discussed here, making that holding unanimous.
102. "Some courts for years recognized an exception to the general rule that a search warrant is needed to search premises for evidence, namely, that police could enter without a warrant to conduct an investigation at the scene of a possible homicide.".
103. Thompson v. Louisiana, 469 U.S. 17, 21 (1984) (reversing Louisiana Supreme Court's holding that detectives could perform warrantless search of home where homicide victim was discovered).
104. Whren v. United States, 517 U.S. 806 (1996).
105. Atwater v. City of Lago Vista, 532 U.S. 318 (2001).
106. Whren, 517 U.S. at 810.
107. Atwater, 532 U.S. at 354.
108. "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.";
109. Craig Bradley, The Middle Class Fourth Amendment, 6 BUFF. CRIM. L. REV. 1123, 1138 n.69 (2003) (stating that, in Atwater, "the Court continued its insistence that Fourth Amendment law, i.e., the reasonableness of a given search or seizure, does not depend on the nature or seriousness of the crime being investigated");
110. cf. Wayne A. Logan, Reasonableness as a Rule: A Paean to Justice O'Connor's Dissent in Atwater v. City of Lago Vista, 79 MISS. L.J. 115, 129 (2010) (noting that "state and lower federal courts condoned warrantless arrests, and searches incident thereto, for myriad minor auto and non-auto related offenses" and listing offenses with citations).
111. Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642, 1660 (1998) ("The Court has chosen to stay out of the area of substance in evaluating most searches and seizures partly because of the subjectivity that seems to be an inevitable component of nonquantitative reasonableness analysis.");
112. Vicki C. Jackson, Being Proportional About Proportionality, 21 CONST. COMMENT. 803, 849 n.145 (2004) (stating that the Court's "concern for the administrability of a rule against warrantless arrests for nonjailable offenses may be of a piece with the more general phenomenon that Professor Stuntz has criticized: the absence of proportionality between investigative methods regulated under the Fourth Amendment and the seriousness of the crime involved");
113. "The real reason for transsubstantive law is practicality, the fear that taking substance into account when authorizing searches or subpoenas will be unmanageable.".
114. Mincey v. Arizona, 437 U.S. 385, 393 (1978).
115. quoting Chimel v. California, 395 U.S. 752, 766 (1969).
116. Whren v. United States, 517 U.S. 806, 818-19 (1996).
117. Atwater, 532 U.S. at 348.
118. see Ronald M. Gould & Simon Stern, Catastrophic Threats and the Fourth Amendment, 77 S. CAL. L. REV. 777, 810-11 (2004) (arguing that tailoring Fourth Amendment protections to offense gravity "would be wholly unworkable for police in the field in the first instance and for magistrates issuing warrants and for reviewing courts");
119. Erik Luna, Drug Exceptionalism, 47 VILL. L. REV. 753, 786 (2002) (arguing that "[a] sliding scale approach" to Fourth Amendment doctrine "presents a variety of administrative and practical problems" and detailing problems);
120. stating that while "[w]e may all agree that there is a difference between murder and littering," it does not necessarily "follow that courts can create administrable lines that distinguish the various cases between the two extremes"). Slobogin fleshes out his critique in a footnote, stating: At what point does an offense become so serious that police no longer need probable cause to search a house? Should the dividing line be between felonies and misdemeanors, between offenses that are considered 'harmful' and those that are not, or should it vary from case to case, depending more on the nature of the criminal act rather than the technical offense committed? And how does one apply whatever standard is appropriate in cases where it is not known what crime has been committed?
121. arguing that "no obvious principle requires transsubstantive Fourth Amendment law");
122. cf. Virginia v. Moore, 553 U.S. 164, 175 (2008) (acknowledging that "[i]n Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable," but the Court nonetheless declined to permit them).
123. Slobogin raises another objection by analogy to other areas of constitutional criminal procedure where protections do not vary based on crime severity.
124. (arguing that the transsubstantive nature of criminal-procedure rules generally "supports a common-sense intuition: that differences in individual protections against government intervention should usually flow from differences in the consequences of the intervention, not from the nature of the crime");
125. ("[T]he fact that a given crime is viewed as serious or harmful does not allow the state to circumvent or even relax other constitutional rights, such as the reasonable doubt standard or the right to trial by jury.").
126. The analogy is flawed, however, because in most criminal-procedure contexts, any offense-gravitybased increase in the government's interest in conviction is offset by a countervailing consideration: the innocent defendant's interest in avoiding a more serious conviction. This mirror image of countervailing interests is largely absent in the Fourth Amendment context. See Welsh v. Wisconsin, 466 U.S. 740, 760 (1984) (White, J., dissenting) ("A warrantless home entry to arrest is no more intrusive when the crime is 'minor' than when the suspect is sought in connection with a serious felony.");
127. One could argue that a guilty defendant's interest in avoiding detection increases as the severity of the crime investigated increases, but the law (properly) does not consider a desire to conceal guilt as a legitimate privacy interest. See, e.g., Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (explaining that "[w]e have held that any interest in possessing contraband cannot be deemed 'legitimate,' and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest'"
128. (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984);
129. Ric Simmons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies, 53 HASTINGS L.J. 1303, 1349 (2002).
130. Other objections could be raised, such as that vigorous and intrusive prosecutions of minor crimes may be reasonable for the counterintuitive reason that such prosecutions lead to a decrease in serious crime. See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 351 (1997) (arguing that "[c]racking down on aggressive panhandling, prostitution, open gang activity and other visible signs of disorder may be justifiable" under "social influence conception of deterrence" (internal quotation marks omitted)).
131. Welsh, 466 U.S. 740;
132. "The Court in Welsh did something it has usually refused to do: It took note of both the gravity of the offense in question (a 'minor offense') and the intrusiveness of the particular search (a person's home, at night).");
133. noting Welsh as one of "a few famous exceptions" to the courts' ostensible indifference to crime severity, "famous precisely because they are exceptional").
134. Welsh, 466 U.S. at 753-54.
135. (citing McDonald v. United States, 335 U.S. 451 (1948) (Jackson, J., concurring)).
136. advocating more concrete guidance for lower courts attempting to implement the holding of Welsh).
137. Tennessee v. Garner, 471 U.S. 1, 11 (1985) ("A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.").
138. Garner's explicit allowance for the use of deadly force based on past, rather than present, dangerousness, is at odds with other parts of the opinion that stress the importance of present dangerousness. Nevertheless, in a later case, the Court rejected an effort to render this language superfluous, explaining that "[t]he necessity described in Garner was, in fact, the need to prevent 'serious physical harm, either to the officer or to others'" and that "Garner hypothesized that deadly force may be used 'if necessary to prevent escape' when the suspect is known to have 'committed a crime involving the infliction or threatened infliction of serious physical harm,' so that his mere being at large poses an inherent danger to society." Scott v. Harris, 550 U.S. 372, 382 n.9 (2007) (citation omitted)
139. (quoting Garner, 471 U.S. at 11).
140. Graham v. Connor, 490 U.S. 386, 396 (1989).
141. In at least two other contexts, the Supreme Court hinted, without deciding, that offense severity might factor into Fourth Amendment reasonableness. See United States v. Banks, 540 U.S. 31, 37 n.4 (2003) (suggesting, without deciding, that there might be a distinction with respect to reasonableness of no-knock entry "when the reason for the search is a minor offense");
142. United States v. Hensley, 469 U.S. 221, 223-24, 229 (1985) (upholding Terry stop of a person suspected of being the getaway driver in a twelve-day-old, armed robbery as reasonable, "[p]articularly in the context of felonies or crimes involving a threat to public safety," but hedging that: "We need not and do not decide today whether Terry stops to investigate all past crimes, however serious, are permitted").
143. In the wake of Hensley, lower courts diverge on the question left open by the high court, with some courts deeming there to be a rough dividing line between serious and minor crimes demarcated by the pertinent jurisdiction's (sometimes obscure) line between felony and misdemeanor offenses. See Rachel S. Weiss, Note, Defining the Contours of United States v. Hensley: Limiting the Use of Terry Stops for Completed Misdemeanors, 94 CORNELL L. REV. 1321, 1335 & n.109 (2009).
144. Lower courts also incorporate offense seriousness into the reasonableness calculation in contexts not yet condoned by the Supreme Court. See Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984) (per curiam) (holding that the Fourth Amendment prohibits suspicionless strip searches of prisoners arrested "for minor offenses").
145. overruled by Bull v. City & Cnty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc);
146. see also Florence v. Bd. of Chosen Freeholders, 621 F.3d 296, 299 (3d Cir. 2010).
147. cert. granted, 131 S. Ct. 1816 (2011) (noting Ninth Circuit's reversal of Giles and the circuit split with respect to reasonableness of suspicionless strip searches of prisoners);
148. Wayne A. Logan, Street Legal: The Court Affords Police Constitutional Carte Blanche, 77 IND. L.J. 419, 461 & n.270.
149. See, e.g., United States v. Burgess, 576 F.3d 1078, 1087 (10th Cir. 2009) (describing the "automobile exception" to the warrant requirement).
150. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting).
151. see also McDonald v. United States, 335 U.S. 451, 459 (1948) (Jackson, J., concurring).
152. proposing exception to the exclusionary rule "in the most serious cases-treason, espionage, murder, armed robbery, and kidnapping by organized groups" with the caveat "that evidence would be suppressed if the violation of civil liberties were shocking enough".
153. Kaplan argues that his proposal would protect the exclusionary rule from popular hostility and allow courts to more "fully and honestly" interpret the Fourth Amendment, "[f]reed of the concern that the fourth amendment [sic] doctrine they announce would later result in the release of people guilty of the most serious crimes."
154. Yale Kamisar and others criticize proposals like Kaplan's on the ground that they lead inevitably to dilution of the already meager Fourth Amendment protections, particularly as any list of "serious crimes" would inevitably grow to include numerous offenses, including those that most frequently occasion unreasonable searches-drug offenses. Yale Kamisar, "Comparative Reprehensibility" and the Fourth Amendment Exclusionary Rule, 86 MICH. L. REV. 1, 26 (1987) (internal quotation marks omitted);
155. "It seems inevitable that the Court will be presented with one or more cases in which the police request additional investigative authority to deal with terrorism or other threats of catastrophic harm.";
156. arguing that Fourth Amendment doctrine should be altered to ensure that law enforcement may lawfully conduct a mass search to locate a hidden nuclear bomb;
157. arguing that "there is nothing new about, and nothing wrong with, the claim that after September 11 law enforcement authority should increase" and proposing as part of a "grand trade" that law enforcement be provided additional constitutional leeway investigating terrorists.
158. Even with exclusion off the table, milder disincentives to unconstitutional searches and seizures would presumably remain, such as civil liability under 28 U.S.C. § 1983.
159. See Pearson v. Callahan, 555 U.S. 223, 242-43 (2009).
160. See Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 76-77 (1992)
161. explaining that, although the exclusionary rule was introduced by the Supreme Court in the 1914 decision of Weeks v. United States, 232 U.S. 383 (1914)
162. its application was limited to federal prosecutions until the 1961 decision in Mapp v. Ohio, 367 U.S. 643 (1961)).
163. See Delnegro v. State, 81 A.2d 241, 244 (Md. 1951)
164. citing Bouse Act, ch. 194, § 1, 1929 Md. Laws 533, 533-34 (repealed 1996).
165. The Maryland statute was later amended to also preclude application of the exclusionary rule in prosecutions of misdemeanor gambling offenses in certain counties. Salsburg v. State, 94 A.2d 280, 281 (Md. 1953).
166. aff'd, 346 U.S. 545 (1954).
167. arguing that the Fourth Amendment's reasonableness command implies a consideration of the "government need" for certain investigative techniques, and "[a] large factor in government need-perhaps the largest-is the crime the government is investigating".
168. Other commentators echo these calls for offense-specific Fourth Amendment doctrine.
169. arguing that Courts should be "fixed on reasonableness as the polestar of the Fourth Amendment" and noting offense severity as one of the possible factors to be considered in determining reasonableness;
170. suggesting series of guidelines for Fourth Amendment doctrine that includes "proportionality," a concept defined, in part, based on "the degree of harm to be avoided or investigated");
171. Richard A. Posner, Rethinking the Fourth Amendment, 1981 SUP. CT. REV. 49, 53, 74 (advocating a cost-benefit analysis of searches to determine constitutional reasonableness, enforced exclusively by tort remedies, and noting that a factor in weighing the benefits of a search is the "gravity of the crime").
172. For example, Wesley Oliver echoes Kaplan's call for an exception to the exclusionary rule for serious crimes, but calls on the legislature to define the crimes effected, and limits this exception to "good faith" Fourth Amendment violations. Wesley MacNeil Oliver, Toward a Better Categorical Balance of the Costs and Benefits of the Exclusionary Rule, 9 BUFF. CRIM. L. REV. 201, 241, 246 (2005);
173. advocating that a bright-line rule be established barring warrantless home entries in investigations of all misdemeanor-as opposed to felony-offenses, and also suggesting differential Fourth Amendment treatment for "apocalyptic" crimes.
174. Colb's proposal "would result in a finding that the Court either should or should not apply a substantively more demanding standard (or even, in theory, an absolute prohibition) to such intrusions."
175. Echoing the tenor of Colb's view, Slobogin proposes a doctrinal framework based upon the idea that "the justification for a government search or seizure ought to be roughly proportionate to the invasiveness of the search or seizure."
176. Slobogin focuses only on one side of the reasonableness balance, however, and particularly "an assessment of intrusiveness" of the search, which, he argues, should be determined with reference to public opinion.
177. arguing that "crucial to application of the proportionality principle that I propose ⋯ is an assessment of intrusiveness;" "the government's justification for a search or seizure must be roughly proportionate to its intrusiveness, and ⋯ the justification inquiry focuses on how certain police are about whether the search or seizure will produce the evidence they seek".
178. see also CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT 39 (2007) (discussing the government-interest side of the equation with reference to the degree of certainty that a suspect committed a crime).
179. Emphasizing that offense-specific Fourth Amendment doctrine should not be a "one way street" (quoting Gooding v. United States, 416 U.S. 430, 465 (1974) (internal quotation mark omitted)), and if Courts grant police greater authority to investigate serious crimes they "will face increased pressure to impose additional limitations on police powers in very minor cases").
180. As part of a proposed "grand trade," Stuntz also advocates a crime-conscious Fourth Amendment doctrine that attempts to limit certain types of secret, invasive searches to "the investigation of violent felonies" by "bar[ring] the use of ⋯ evidence" obtained in those searches "to prove other, lesser crimes."
181. This proposal appears, like Kaplan's, to focus on the charged crime, rather than the crime under investigation.
182. emphasizing the ability of proposed approach to improve upon current doctrine by "address[ing] the potential for disproportionality between searches otherwise supported by probable cause and a warrant when the crime at issue is relatively minor".
183. "In very minor cases, the proportionality principle can operate as a trump, as it did in Welsh v. Wisconsin.".
184. See MATTHEW R. DUROSE ET AL., BUREAU OF JUSTICE STATISTICS, DEP'T OF JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC, 2005, at 3 tbl.3 (2007), available at http://bjs.ojp. usdoj.gov/content/pub/pdf/cpp05.pdf (reporting on survey indicating that 40.9% of police- citizen contacts involved a stop of respondent for a traffic infraction, while 2.8% arose because the person was suspected of other wrongdoing by police);
185. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2011, at 204, 206 tbls.320 & 324 (2011) (listing arrest offenses in 2008, including 430.4 drug-possession arrests per every 100,000 U.S. inhabitants);
186. Bureau of Justice Statistics, Dep't of Justice, Key Facts at a Glance, OFF. JUST. PROGRAMS, http://bjs.ojp.usdoj.gov/content/glance/tables/drugtab.cfm (last visited Sept. 1, 2011) (reporting 1,645,500 drug arrests for adults and 195,700 for juveniles in 2007).
187. See CTR. FOR CONSTITUTIONAL RIGHTS, RACIAL DISPARITY IN NYPD STOPS-AND-FRISKS 3-5 (2009), available at http://ccrjustice.org/files/reports/ Report-CCR-NYPD-Stop-and- Frisk.pdf (describing disproportionate impact of NYPD stop-and-frisk policy on minorities);
188. noting race of individuals stopped for traffic violations;
189. arguing that in the wake of decisions like Atwater, "the extremely broad arrest and search powers now enjoyed by the police will be applied in a highly selective manner, thus virtually ensuring even more frequent complaints of racial profiling and other forms of disparity";
190. arguing that crime-severity distinctions would reduce the likelihood of discriminatory law enforcement because broad substantive criminal law, such as the traffic code, gives police "probable cause to arrest anyone they want[]";
191. Ailsa Chang, Alleged Illegal Searches by NYPD May Be Increasing Marijuana Arrests, WNYC NEWS (Apr. 26, 2011), http://www.wnyc.org/articles/wnyc-news/ 2011/apr/26/marijuana-arrests (reporting on high volume of marijuana possession arrests-140 people a day-in New York City and suggesting that aggressive police enforcement of marijuana possession laws disproportionately result in searches of minorities).
192. Atwater and Whren have been harshly criticized. See, e.g., Diana Roberto Donahoe, "Could Have," "Would Have:" What the Supreme Court Should Have Decided in Whren v. United States, 34 AM. CRIM. L. REV. 1193, 1205 (1997) (noting that given the ubiquity of traffic laws and the Supreme Court's holding in Whren, "[n]o one is free from this abuse of discretion");
193. "The decision in Atwater has been widely criticized, even by conservatives, and with good reason." (footnote omitted);
194. arguing that Atwater suggests that "reasonableness has been written out of the Fourth Amendment" and ignores the implications for "all Americans, who, in contrast to members of the Atwater majority, ⋯ will suffer the brunt of the Court's cavalier sentiment";
195. Timothy P. O'Neill, Beyond Privacy, Beyond Probable Cause, Beyond the Fourth Amendment: New Strategies for Fighting Pretext Arrests, 69 U. COLO. L. REV. 693, 730 (1998) (arguing that "Whren is a serious setback for those interested in the civil liberties of Americans").
196. noting that Fourth Amendment doctrine's transsubstantive nature "is almost never questioned").
197. "Surprisingly, few works have so far discussed this matter broadly and systematically.".
198. Schroeder's proposal for coherently applying Welsh, and Oliver's argument for a limited good-faith exception to the exclusionary rule in serious cases, are notable exceptions, but both focus on narrow aspects of Fourth Amendment doctrine.
199. Recognizing "the difficulties inherent in finding a viable methodology for distinguishing among and ranking offenses".
200. On this second point, the Fourth Amendment's text is both a blessing and a curse. The "reasonableness" command openly invites consideration of a crime-severity variable in some form. In addition, the vague constitutional directive provides significant leeway to the Supreme Court to define the variable's contours and should immunize the Court to some degree from criticism-at least on constitutional legitimacy grounds-of the choices made.
201. noting that the Fourth Amendment "appears to require a fairly high level of abstraction of purpose; its use of the term 'reasonable' (actually, 'unreasonable') positively invites constructions that change with changing circumstances";
202. "Perhaps so long as there is a constitutional principle that shows the need to draw a line somewhere, courts should feel free to draw such a line even if they can't give a principled reason for the particular place they draw it.";
203. cf. Duncan v. Louisiana, 391 U.S. 145, 160 (1968) (noting difficulty of line drawing in separating "petty offenses" from those for which a jury trial must be provided and stating that "in the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts".
204. At the same time, the absence of a more specific constitutional command creates a danger that no matter what course the Court pursues, it will appear to be acting on its own policy preferences, particularly if its crime-severity characterizations do not mirror those of the legislature. See Donald A. Dripps, The Fourth Amendment and the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of Bright-Line Rules, 74 MISS. L.J. 341, 341 (2004) (highlighting the difficulty the "spacious" language of the Fourth Amendment creates for courts: "courts are not supposed to legislate, and yet in this instance the plain meaning of the text incorporates norms of reasonableness by reference").
205. For example, Oklahoma City bomber Timothy McVeigh and serial killer Ted Bundy were apprehended after being pulled over for traffic violations. See Official Trial Transcript, United States v. McVeigh, 1997 WL 203457, at *12 & *32 (D. Colo. 1997);
206. David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271, 271 n.1.
207. See, e.g., Rios v. United States, 364 U.S. 253, 261-62 (1960) (holding that constitutionality of arrest must be determined by what occurred at the time of arrest, and "nothing that happened thereafter could make that arrest lawful, or justify a search as its incident");
208. United States v. Di Re, 332 U.S. 581, 595 (1948) ("We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success." (citation omitted)).
209. advocating that "Supreme Court doctrine recognize that an 'unreasonable' search in violation of the Fourth Amendment occurs whenever the intrusiveness of a search outweighs the gravity of the offense being investigated");
210. Donald A. Dripps, The "New" Exclusionary Rule Debate: From "Still Preoccupied with 1985" to "Virtual Deterrence," 37 FORDHAM URB. L.J. 743, 760 (2010) ("However one resolves the transsubstantive issue, the issue is one of substantive, rather than remedial, law.");
211. "Fourth Amendment law can vary its protection based on the nature of the crime police are investigating.".
212. This is not to say that crime-severity distinctions tethered to the charged crime would be unsupportable. Rather, the point is that an approach that focused on the charged crime is distinct from that proposed here, requiring a different doctrinal grounding (e.g., policy-based modifications to the exclusionary rule) and aimed at a different goal-removing obstacles to prosecutions of serious crimes. The merits of such a proposal would require careful consideration and are beyond the scope of this Article.
213. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (determining that the offense the officer believed the suspect had committed was not sufficiently dangerous to warrant seizure by deadly force);
214. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (deeming "the underlying offense for which there is probable cause to arrest" to be minor);
215. cf. United States v. Hensley, 469 U.S. 221, 229 (1985) (noting possible distinction in reasonableness between stops based on officer's belief that suspect was involved in felony as opposed to misdemeanor offense).
216. noting that gradations of protections will create the difficult circumstance where the police and prosecutors must "classify cases by crime before the details of the crime are known".
217. noting that under current law, "once police officers have found incriminating evidence, they have an obvious incentive to perjure themselves in order to justify the initial seizure".
218. See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1859 (2011);
219. Graham v. Connor, 490 U.S. 386, 397 (1989) ("As in other Fourth Amendment contexts, ⋯ the 'reasonableness' inquiry ⋯ is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.");
220. Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (emphasizing that in assessing Fourth Amendment reasonableness, "it is imperative that the facts be judged against an objective standard").
221. King, 131 S. Ct. at 1859;
222. Graham, 490 U.S. at 396-97 ("The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving ⋯ .").
223. explaining that the "probable cause test" is "an objective one; for there to be probable cause, the facts must be such as would warrant a belief by a reasonable man".
224. Where appropriate, the "collective knowledge" doctrine imputes the knowledge of other officers to the searching officer. See United States v. Nafzger, 974 F.2d 906, 912 (7th Cir. 1992) (discussing collective-knowledge doctrine).
225. Cf. Tennessee v. Garner, 471 U.S. 1, 11 (1985) (holding that deadly force seizures are reasonable where "there is probable cause to believe that [the suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm");
226. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (holding that a warrantless home entry was unreasonable where "the underlying offense for which there is probable cause to arrest" was minor).
227. cf. ANDREW VON HIRSCH, PAST OR FUTURE CRIMES: DESERVEDNESS AND DANGEROUSNESS IN THE SENTENCING OF CRIMINALS 76 (1985) ("Rating crimes is ultimately a matter of making value judgments, on which persons reasonably may differ.").
228. Ingram v. City of Columbus, 185 F.3d 579, 587-88 (6th Cir. 1999) (ruling that the police had probable cause to believe the suspect was "engaged in a felony warranting imprisonment"-offering to sell cocaine-and, thus, could pursue him into a home without a warrant).
229. United States v. Schmidt, 403 F.3d 1009, 1012 (8th Cir. 2005).
230. Illinois v. McArthur, 531 U.S. 326, 328 (2001).
231. The offense could be punished by up to thirty days in jail.
232. highlighting similar difficulties with a doctrinal framework that evaluates crime severity on a case-by-case basis). The debate summarized above reflects the familiar tensions between rules and standards.
233. See generally Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985).
234. See New York v. Belton, 453 U.S. 454, 458 (1981) ("[T]he protection of the Fourth and Fourteenth Amendments 'can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.'").
235. abrogated on other grounds by Davis v. United States, 131 S. Ct. 2419 (2011).
236. "An explicit seriousness scale helps compel the rulemaker to consider whether its proposed penalties comport with its judgment of the comparative gravity of offenses.";
237. emphasizing inevitable pressure on courts to expand any list defining "serious crimes" for which law enforcement was permitted greater leeway in its investigations;
238. echoing and supplementing Kamisar's criticisms.
239. See Solem v. Helm, 463 U.S. 277, 292-94 (1983) (explaining that "courts are competent to judge the gravity of an offense, at least on a relative scale" because "there are generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes").
240. This point distinguishes the related challenge of calculating offense seriousness for purposes of sentencing. See ANDREW VON HIRSCH ET AL., THE SENTENCING COMMISSION AND ITS GUIDELINES 99 (1987) (deeming "sensible" the Minnesota Sentencing Commission's decision to distinguish ten categories of offense seriousness).
241. As the federal sentencing guidelines demonstrate, sentences can be calculated in precise numerical increments. See generally U.S. SENTENCING COMM'N, GUIDELINES MANUAL (2010), available at http://www.ussc.gov/guidelines/ 2010-guidelines/Manual-PDF/TitlePage-Citation-ToC.pdf.
242. See Illinois v. Krull, 480 U.S. 340, 362 (1987) (Marshall, J., dissenting) ("Statutes authorizing unreasonable searches were the core concern of the Framers of the Fourth Amendment.");
243. describing vast body of English legislation that authorized searches pursuant to general warrants.
244. stating that "[n]o one questions that the Framers despised and sought to ban general warrants" and explaining that "the Framers adopted constitutional search and seizure provisions with the precise aim of ensuring the protection of person and house by prohibiting legislative approval of general warrants".
245. Virginia v. Moore, 553 U.S. 164, 168 (2008);
246. Moore, 553 U.S. at 169.
247. quoting Whren v. United States, 517 U.S. 806, 815 (1996) (internal quotation marks omitted).
248. criticizing Welsh for "disavow[ing] any judicial judgment about the significance of the actual violation" and warning that "[i]f Wisconsin were unhappy with the Court's decision, it could, therefore, nullify it prospectively by simply changing (legislatively) the status of driving while intoxicated from a civil violation to a criminal offense";
249. noting that the Fourth Amendment should "not [be] subject to arbitrary change or manipulation by legislatures or courts";
250. recognizing danger of legislative manipulation in this context.
251. A further problem is that legislative assignments of maximum sentences may not be indicative even of the legislature's view of the seriousness of the crime.
252. See Welsh v. Wisconsin, 466 U.S. 740, 763 (1984) (White, J., dissenting) (noting that the legislature may have limited "the penalties imposed on first offenders in order to increase the ease of conviction and the overall deterrent effect";
253. recognizing that statutory penalties may be influenced by "considerations other than seriousness").
254. Reasonable-person standards are common in Fourth Amendment doctrine. See, e.g., Brendlin v. California, 551 U.S. 249, 255 (2007) ("[A] seizure occurs if 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave' ⋯ ."
255. (quoting United States v. Mendenhall, 446 U.S. 544 (1980);
256. Florida v. Jimeno, 500 U.S. 248, 251 (1991) ("The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?";
257. Terry v. Ohio, 392 U.S. 1, 22 (1968) (identifying as key Fourth Amendment inquiry: "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate").
258. R. v. Collins, [1987] 1 S.C.R. 265, para. 20 (Can.).
259. elaborating on the benefits of the "reasonable man" standard in Canadian jurisprudence.
260. Canadian jurisprudence has a complicated history with respect to considering crime severity in this analysis. See Collins, 1 S.C.R. 265, at para. 35 (recognizing as a pertinent factor: "[I]s the offence serious?";
261. R. v. Grant, [2009] 2 S.C.R. 353, paras. 62, 66, 84 (Can.) (expressing dissatisfaction with the case law that had evolved under Collins and, in the process of providing "clarification" as to multifactored approach, ruling that offense seriousness "cut both ways" and was thus always a neutral factor in the exclusionary calculus).
262. Collins, 1 S.C.R. 265, at para. 34.
263. A similar approach could be to view relative crime severity through a Rawlsian "veil of ignorance," where those who craft a crime hierarchy must do so without knowing its implications for their personal interests. See generally JOHN RAWLS, A THEORY OF JUSTICE (1971).
264. Cf. Robert Weisberg, IVHS, Legal Privacy, and the Legacy of Dr. Faustus, 11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 75, 78 (1995) ("[T]o return Fourth Amendment law-or supplementary statute law-to what philosophers call the Rawlsian veil of ignorance-that idealized condition in which we convene to establish the best rules for our society before anyone of us knows whether she personally will turn out to be the beneficiary or the victim of the rules.").
265. See Minnesota v. Carter, 525 U.S. 83, 88 (1998) ("[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has 'a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'"
266. quoting Rakas v. Illinois, 439 U.S. 128, 143-44 & n.12 (1978) (emphasis added));
267. Smith v. Maryland, 442 U.S. 735, 740 (1979) (explaining that a search occurs when the authorities invade an expectation of privacy that "society is prepared to recognize" as reasonable).
268. Sergio Herzog, The Relationship Between Public Perceptions of Crime Seriousness and Support for Plea-Bargaining Practices in Israel: A Factorial-Survey Approach, 94 J. CRIM. L. & CRIMINOLOGY 103, 106-07 (2003) (summarizing literature);
269. explaining that, while there is continuing debate on this point, the existing "studies show that people from different walks of life tend to rate the gravity of common criminal acts similarly";
270. Michael O'Connell & Anthony Whelan, Taking Wrongs Seriously: Public Perceptions of Crime Seriousness, 36 BRIT. J. CRIMINOLOGY 299, 301 (1996) (surveying literature and concluding that "[t]here appears to be agreement on consensus" that is "best stated by [P.H.] Rossi and [P.H.] Henry" as follows: "Remarkable degrees of consensus obtain ⋯ across populations within sub-groups [but the] ⋯ agreement on the relative ordering of criminal acts is compatible with considerable differences in the absolute level of seriousness attributed to any given act").
271. Similarly, H.L.A. Hart refers to a "commonsense scale of gravity" in describing the need for a rational criminal justice system to assign proportional punishments for varying offenses. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 25 (1968).
272. Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1855 (2007).
273. See Solem v. Helm, 463 U.S. 277, 292-94 (1983) (supporting assertion that "courts are competent to judge the gravity of an offense, at least on a relative scale," by noting socialscience literature that suggests "there are widely shared views as to the relative seriousness of crimes"
274. (citing Peter H. Rossi et al., The Seriousness of Crimes: Normative Structure and Individual Differences, 39 AM. SOC. REV. 224, 237 (1974))).
275. Stuart P. Green, Why It's a Crime To Tear the Tag off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1565 (1997).
276. (discussing MARVIN E. WOLFGANG ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NATIONAL SURVEY OF CRIME SEVERITY (1985)).
277. listing kidnapping, intentional shootings, and armed robberies among offenses perceived to be most serious in comprehensive survey of offense severity).
278. The phrase "armed robbery" is intended to avoid inclusion of less dangerous, unarmed robberies. See Franklin E. Zimring & Gordon Hawkins, Crime Is Not the Problem: A Reply, 69 U. COLO. L. REV. 1177, 1184 (1998) ("[R]obbery is both itself a violent crime and one leading cause of criminal homicide.").
279. See Delbert S. Elliott, Life-Threatening Violence Is Primarily a Crime Problem: A Focus on Prevention, 69 U. COLO. L. REV. 1081, 1082 (1998) (noting that when considering lifethreatening violent crime, "[t]he most inclusive definition would include all homicides, nonnegligent manslaughters, robberies, and aggravated assaults").
280. For a discussion of the complexities of developing theoretical grounds for ranking offense severity, see Andrew von Hirsch, Proportionality in the Philosophy of Punishment, in 16 CRIME AND JUSTICE: A REVIEW OF RESEARCH 81-83 (Michael Tonry ed., 1992).
281. Elsewhere, von Hirsch suggests a theoretical basis for determining offense severity based on the degree to which offenses "restrict people's ability to direct the course of their own lives," a theory that "accounts for our sense of the gravity of violence, for violence restricts victims' choices so drastically" and explains "why economic crimes can also be serious."
282. He also argues, consistent with the discussion in the text, that popular assessments of offense severity alone should not determine offense seriousness, but such judgments "need to be supported by reasons."
283. A team headed by Paul Robinson recently surveyed residents of New Jersey and Pennsylvania to evaluate offense grading. See Paul H. Robinson et al., Report on Offense Grading in New Jersey (Jan. 10, 2011), available at http://ssrn.com/abstract=1737825 (Univ. of Pa. Law Sch., Pub. Law & Legal Theory Research Paper Series, Research Paper No. 11-03);
284. Paul H. Robinson et al., Report on Offense Grading in Pennsylvania (Dec. 16, 2009), available at http://ssrn.com/abstract=1527149 (Univ. of Pa. Law Sch., Pub. Law & Legal Theory Research Paper Series, Research Paper No. 10-01).
285. The surveys, although not tailored to the Fourth Amendment inquiry, are consistent with the socialscience literature described above. In the Pennsylvania survey, the offenses rated above 5.5 on a relative severity scale were murder, arson, keeping an adult slave, threatening a judge at gunpoint in retaliation for a ruling, various sex offenses, selling an infant, rape of a minor, shooting a firearm into a structure for purposes of ethnic intimidation, and threatening a witness at gunpoint in retaliation for testifying. Robinson, Report on Offense Grading in Pennsylvania, supra, at 58-62.
286. The offenses rated below 2.0 included various nonviolent offenses, such as failing to disperse, fraud, and trespassing (there do not appear to have been any survey questions evaluating drug possession or traffic offenses).
287. In the New Jersey survey, the offenses rated above 5.5 were arson, kidnapping, and other violent crimes, as well as the somewhat esoteric offenses of unlawful importation of radioactive material and the unlawful sale of cows with "mad cow" disease.
288. Robinson, Report on Offense Grading in New Jersey.
289. Offenses rated below 2.0 included obscenity offenses and possession or use of marijuana.
290. Interpretation is complicated by the understandable use of narratives in place of offense definitions.
291. Robinson, Report on Offense Grading in Pennsylvania.
292. In some of the narratives, the measured offense is paired with a second offense, and it is likely that survey participants rated the severity of the combined offense.
293. evaluating severity of "unlawful use of body vests" through narrative: "John illegally wears a bullet-proof vest during an attempt to kill his neighbor".
294. Canadian authorities undertook another recent effort to determine relative crime severity by reviewing the actual sentences given to offenders in Canadian courts.
295. The results track the surveys described above. See CANADIAN CENTRE FOR JUSTICE STATISTICS, STATISTICS CANADA, MEASURING CRIME IN CANADA: INTRODUCING THE CRIME SEVERITY INDEX AND IMPROVEMENTS TO THE UNIFORM CRIME REPORTING SURVEY (2009), available at http://www.statcan.gc.ca/pub/85- 004-x/85-004-x2009001-eng. pdf.
296. Tennessee v. Garner, 471 U.S. 1, 11 (1985).
297. recognizing potential merits of crime-severity distinctions that relate to the presence or absence of violence and recognizing that Garner supports such an approach;
298. cf. United States v. Hensley, 469 U.S. 221, 229 (1985) (suggesting that Terry stops might be more reasonable when conducted as part of investigations of "felonies or crimes involving a threat to public safety";
299. 18 U.S.C. § 924(e)(2)(B)(i) (2006) (mandating harsher penalties for offenders with prior violent felonies, defined as a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another").
300. Margaret Raymond, Penumbral Crimes, 39 AM. CRIM. L. REV. 1395, 1395 (2002).
301. A surprising number of cases involve police contact based on violations of bicycle ordinances. See, e.g., United States v. McFadden, 238 F.3d 198, 204 (2d Cir. 2001) (rejecting a challenge to seizure by police who observed defendant riding a bicycle on the sidewalk, even though pertinent New York statute contained numerous exceptions).
302. See R. v. Collins, [1987] 1 S.C.R. 265, para. 33 (Can.). Popular survey data, while informative, should not be dispositive.
303. arguing, in the sentencing context, that popular assessments of offense severity alone should not determine offense seriousness, but such judgments "need to be supported by reasons".
304. Some crimes will fall into this middle category due to the absence of a societal consensus as to their relative severity. Robinson and Kurzban found less agreement when they tested subjects' views of the relative seriousness of drug offenses, prostitution, and bestiality.
305. The lack of agreement in the study could be an artifact of its design.
306. reporting that subjects were first asked to rank relative severity of twenty-four crimes and then, only upon completion, asked to rank twelve new crimes in relation to existing twenty-four-crime framework; the subjects showed consistency in ranking twenty-four crimes, but exhibited less agreement with respect to relative ranking of twelve new crimes.
307. It may also suggest, as the authors contend, that "the closer conduct is to the core of physical injury of persons or property, takings without consent, and deception in exchanges, the greater will be present-day agreement about its relative blameworthiness." Id. at 1891.
308. "The large majority of Terry stops are based on suspicion of one of a half-dozen offenses."
309. reporting statistical breakdown of United States arrests by crime.
310. United States v. Schmidt, 403 F.3d 1009, 1012 (8th Cir. 2005).
311. Arguing in context of regulating prosecutor's subpoena authority that crime-severity distinctions should not only be substantive, but "thoroughly case-specific".
312. New Jersey v. T.L.O., 469 U.S. 325, 341 (1985) (evaluating searches of public-school students). This "inconsistent tangle of case law" is difficult to characterize.
313. For a general discussion, see Ric Simmons, Searching for Terrorists: Why Public Safety Is Not a Special Need, 59 DUKE L.J. 843, 926 (2010) (concluding that the doctrine consists of "an inconsistent tangle of case law, justified by a broad Fourth Amendment loophole whose premise-that detecting and preventing violent crime is not a law enforcement purpose-borders on the absurd");
314. see also Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 639 (1989) (Marshall, J., dissenting) (explaining that the Court has recognized "'special needs' exceptions to the Fourth Amendment ⋯ in a patchwork quilt of settings: Public school principals' searches of students' belongings, T.L.O.;
315. public employers' searches of employees' desks, O'Connor; and probation officers' searches of probationers' homes, Griffin," where "each time the Court has found that 'special needs' counseled ignoring the literal requirements of the Fourth Amendment for such full-scale searches in favor of a formless and unguided 'reasonableness' balancing inquiry".
316. T.L.O., 469 U.S. at 341.
317. The Supreme Court's existing school-search jurisprudence provides mixed signals on the propriety of crime-severity considerations, holding that such considerations are irrelevant in determining if a search is reasonable in its inception, but perhaps relevant to determining the permissible scope of that search.
318. Stevens, J., concurring in part and dissenting in part.
319. Describing the Court's inconsistent approach to bright-line rules in the Fourth Amendment context.
320. Illinois v. McArthur, 531 U.S. 326 (2001).
321. The Court in McArthur, after applying the general exigent-circumstances rule to affirm the constitutionality of the search, noted that the offense at issue-drug possession-was fairly minor and seemed to find it necessary to evaluate the overall reasonableness of the contested search in comparison to the search in Welsh. The Court emphasized that the offense was not as minor as the one in Welsh and the intrusion less severe.
322. See Brian J. Foley, Policing from the Gut: Anti-Intellectualism in American Criminal Procedure, 69 MD. L. REV. 261, 280 (2010) (noting that under any regime with bright-line rules, it is inevitable that some people will have their rights violated and that "[t]hese people are a sort of collateral damage from the bright-line rule".
323. See State v. Sample, 489 P.2d 44, 46 (Ariz. 1971) (allowing police to "mak[e] a warrantless search of the premises in which the victim is found dead").
324. Orin Kerr provides a practical defense of clear rules governing police-officer conduct, arguing that courts must provide clear guidance to minimize social costs of the exclusionary rule. Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 527-28 (2007);
325. cf. Anne Bowen Poulin, The Fourth Amendment: Elusive Standards; Elusive Review, 67 CHI.-KENT L. REV. 127, 143-44 (1991) (explaining that when "the court intends [F]ourth [A]mendment rules to guide and influence police behavior, the court will try to define the rule in terms that a law enforcement officer can hope to understand and apply with some degree of accuracy").
326. This imperative for clear rules is less compelling here, however, because the proposed divergence from the bright-line rules increases the likelihood of exclusion only when police investigate less serious crimes. (Although, in some instances, evidence of serious offenses would be excluded if obtained during an investigation of a minor offense.) Further, the divergence has the countervailing effect of decreasing the likelihood of exclusion when police investigate grave crimes.
327. See Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) (explaining that the rule authorizing vehicle searches incident to arrest, while "touted as providing a 'bright line'" had, in fact, "generated a great deal of uncertainty");
328. Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. PITT. L. REV. 227, 230 (1984) (critiquing argument that bright-line rules are preferable to more generic standards in Fourth Amendment jurisprudence);
329. cf. Georgia v. Randolph, 547 U.S. 103, 125 (2006) (Breyer, J., concurring) ("[T]he Fourth Amendment does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can capture the ever-changing complexity of human life.").
330. Payton v. New York, 445 U.S. 573, 586 (1980).
331. Groh v. Ramirez, 540 U.S. 551, 563 (2004).
332. Georgia v. Randolph, 547 U.S. 103, 106 (2006).
333. Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006).
334. (quoting Mincey v. Arizona, 437 U.S. 385, 393-94 (1978)).
335. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
336. Kentucky v. King, 131 S. Ct. 1849, 1863 (2011).
337. Tennessee v. Garner, 471 U.S. 1, 20 (1985) (recognizing the "practical difficulties" inherent in the Court's rule but emphasizing that "similarly difficult judgments must be made by the police in equally uncertain circumstances");
338. arguing that "vagueness" is an overrated problem in Fourth Amendment jurisprudence and that the central question in crafting legal rules is "whether police officers can know roughly where the boundaries are in practice".
339. Illinois v. McArthur, 531 U.S. 326, 330 (2001).
340. See, e.g., Winston v. Lee, 470 U.S. 753, 766 (1985) (ruling that compelled surgery to obtain a bullet from suspect's body was unreasonable because the surgery was not without risk and the state could probably prove its case without the bullet).
341. See United States v. Montoya de Hernandez, 473 U.S. 531, 541 & n.4 (1985) (crafting special Fourth Amendment rule to permit customs agents to detain a suspect at the border for the purpose of monitoring her bowel movement but emphasizing that the rule does not necessarily apply to "strip, body cavity, or involuntary x-ray searches").
342. See United States v. Burgess, 576 F.3d 1078, 1088 (10th Cir.) (considering but declining to decide whether police could conduct a warrantless search of a laptop computer seized during a vehicle stop)
343. cert. denied, 130 S. Ct. 1028 (2009);
344. United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007) (holding that officer could search suspect's cell phone without a warrant as search incident to arrest);
345. People v. Diaz, 244 P.3d 501, 511 (Cal. 2011) (upholding search of defendant's cell phone incident to arrest);
346. Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27, 29 (2008) (explaining that authority to search a suspect's iPhone incident to arrest "appears to follow from longstanding U.S. Supreme Court precedent laid down well before handheld technology was even contemplated").
347. United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009) (upholding warrantless search of car passenger's cell phone after arrest for giving a false name).
348. United States v. Maynard, 615 F.3d 544, 566 (D.C. Cir.) (disagreeing with other courts that have deemed continuous GPS monitoring not to be a search).
349. Cert. granted sub nom. United States v. Jones, 2011 WL 1456728 (2010).
350. See, e.g., United States v. Nerber, 222 F.3d 597, 603 n.4 (9th Cir. 2000) (noting the "lengthy string of state court cases holding that citizens have a reasonable expectation not to be secretly surveilled inside a public bathroom stall" and, thus, that a warrant is required for such surveillance);
351. United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984).
352. Law enforcement's use of this power (i.e., its "good graces") will undoubtedly be shaped by political as well as judicial forces. An optimist might suggest that this means that such invasive searches will be shunned by police to avoid popular resentment, but a pessimist would counter that, at most, these forces will cause such searches to be borne by the least politically powerful such as minorities and the poor. Cf. William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 GEO. WASH. L. REV. 1265, 1272 (1999) ("Privacy, as Fourth Amendment law defines it, is something people tend to have a lot of only when they also have a lot of other things.").
353. Torres, 751 F.2d 875.
354. The court did not elaborate on how such a limitation might work, and the "minor crimes" dicta does not appear to have achieved any traction in later case law.
355. United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1004 (9th Cir. 2009) (stating that "electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed" and "[b]y necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there").
356. Superseded by 621 F.3d 1162 (9th Cir. 2010).
357. Crafting novel set of five rules for magistrates to follow in determining whether to issue warrant "to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer";
358. see also United States v. Mann, 592 F.3d 779, 785 (7th Cir.) (opining that panel's forward looking requirements were not supported by Supreme Court case law).
359. Cert. denied, 130 S. Ct. 3525 (2010).
360. See John Roemer, Electronic Evidence Rules Now Hobbling Prosecutors, DAILY J., Aug. 11, 2010.
361. Brief for the United States in Support of Rehearing En Banc by the Full Court at 6-7, 16, United States v. Comprehensive Drug Testing, Inc., Nos. 05-10067, 05-15006, 05-55354 (9th Cir. Nov. 23, 2009).
362. The brief never mentions the word "steroid" but does detail a stalled investigation into the rape of a four-year-old girl and a "complex national security case.".
363. Comprehensive Drug Testing, 621 F.3d at 1177 (calling "for greater vigilance on the part of judicial officers in striking the right balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures");
364. Kozinski, J., concurring) (reiterating superseded requirements as purported "guidance").
365. Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 STAN. L. REV. 1005, 1006-07 (2010);
366. See United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (finding no Fourth Amendment search where government obtained subscriber information from Internet service provider after chat recipient informed government that defendant showed child pornographic video during Internet chat).
367. See Susan Freiwald, Online Surveillance: Remembering the Lessons of the Wiretap Act, 56 ALA. L. REV. 9, 83 (2004) (arguing that "the allure of electronic surveillance to law enforcement and its threat to privacy requires a comprehensive and workable framework that strictly limits government's ability to surveil");
368. recognizing that "the application of the Fourth Amendment to computer networks will require considerable rethinking of preexisting law";
369. advocating increased Fourth Amendment protections because "reasonable expectations of privacy and the probable cause standard are not enough to ensure a sound balance between privacy and security in the face of widespread intermediation";
370. John Palfrey, The Public and the Private at the United States Border with Cyberspace, 78 MISS. L.J. 241, 294 (2008) ("[I]t is time to rethink whether the scope of the Fourth Amendment is sufficient to protect individual privacy from intrusion by the state, especially with respect to data initially collected by private parties.");
371. arguing that if the Court continues on its current path, its doctrine "will inevitably result-indeed, has already resulted-in a gradual weakening of Fourth Amendment protections as investigative technologies become more sophisticated";
372. Omer Tene, What Google Knows: Privacy and Internet Search Engines, 2008 UTAH L. REV. 1433, 1470 ("[C]onstitutional doctrine for privacy protection in the United States is overly narrow and outdated, particularly in light of the market and technological developments of the past three decades.").
373. Other means of limiting privacy intrusions exist (e.g., through statutes), but none can provide as broad or as lasting protection as the Fourth Amendment.
374. criticizing the Court's approach to this prong of the reasonable-expectation-of-privacy test);
375. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 403 (1974) (arguing that the question courts should ask is "whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society");
376. critiquing the test as follows: "Is it descriptive? Is it normative? Just what does it measure? The cases are all over the map, and the Justices have declined to resolve the confusion".
377. Justice Harlan, the author of the test, suggested a normative approach dissenting in United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting) ("This question must ⋯ be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement.").
378. Smith v. Maryland, 442 U.S. 735, 740 (1979) (describing reasonable-expectation-ofprivacy inquiry as consisting of "two discrete questions": (1) "whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy,";
379. "whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable" (quoting Katz v. United States, 389 U.S. 347, 361 (1967)) (internal quotation marks omitted)).
380. See generally Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society," 42 DUKE L.J. 727, 767 (1993).
381. discussing variances in intrusiveness ratings for identical investigative tactics and explaining that a "possible explanation ⋯ is that the subjects allowed their attitudes toward the types of crime being investigated to affect their answers".
382. Slobogin views crime-severity-based variance in intrusiveness as "noise" that distorts the actual intrusiveness. This conclusion is not, however, the only one to be drawn from the data. See Jeremy A. Blumenthal et al., The Multiple Dimensions of Privacy: Testing Lay "Expectations of Privacy," 11 U. PA. J. CONST. L. 331, 353-54 (2009) (discussing Slobogin and Schumacher's findings that providing subjects with context regarding, inter alia, the purpose of a search influenced the subjects' views of intrusiveness and criticizing their conclusion that these findings suggest a flaw in the subjects' intrusiveness assessments: "Doctrinally, that may not be so; psychologically, it is not clear that there are explicit grounds for making such a choice." (citation omitted)).
383. Although plausible, this approach would likely be unsatisfactory, not because it distorts the reasonable-expectation-of-privacy test, but because it moves the test far afield from its ostensible purpose-determining whether an investigative technique falls within the definition of the word "search." As a consequence, incorporating crime severity into assessments of reasonable expectations of privacy could lead to the implosion of the test altogether, perhaps rightly so. See Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring) (criticizing the "notoriously unhelpful" reasonable-expectation-of-privacy test and advocating a return to the "clear text" of the Fourth Amendment "and 4-century-old tradition" of the meaning of the terms utilized there);
384. Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L. REV. 1511 (2010).
385. The Court generally acknowledges the context dependence of societal expectations of privacy, but not with respect to crime severity. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) ("What expectations are legitimate varies, of course, with context, ⋯ depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park.").
386. criticizing Supreme Court's doctrine as follows: "the only good explanation for the Court's unwillingness to regulate so many actions that are clearly searches and seizures is that it has decided that the cost to law enforcement of doing so outweighs the 'minimal' intrusions involved".
387. For a possible demonstration of the courts' nervousness about labeling the use of new technologies a search, see Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007) ("[I]ndividuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP."); Warshak v. United States, 532 F.3d 521, 522 (6th Cir. 2008) (en banc) (vacating panel opinion due to lack of standing).
388. See, e.g., United States v. Torres, 751 F.2d 875, 883 (7th Cir. 1984) (emphasizing dangers posed by terrorism suspects in upholding video surveillance as reasonable);
389. United States v. Hudson, 100 F.3d 1409, 1423 (9th Cir. 1996) (Reinhardt, J., dissenting) (criticizing majority for failing to incorporate into the Fourth Amendment reasonableness inquiry the "glaring disproportionality between the intrusiveness of the raid and the four-month-old sale of sixty dollars' worth of drugs that was offered to justify the raid");
390. "Just as in some murder cases the law's standards seem too high, they seem too low in thousands of cases involving less important offenses.".
391. United States v. Knights, 534 U.S. 112, 118 (2001).
392. The distinction currently available in the case law only applies in exigent circumstances (e.g., where the bomber is about to strike or immediately fleeing the crime). See Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).
393. highlighting problems with transsubstantive doctrine);
394. noting difficulties of drawing lines between crimes but emphasizing that "there are problems with treating all crimes alike as well".